I'm surprised he hasn't argued there's evidence of a different crime on the disk(s), as a reason why he is refusing under the Fifth. Edit: Thanks for the downvotes :)
They'd offer him immunity on the "different crime", then he'd have no defence.
Man jailed indefinitely for refusing to decrypt hard drives loses appeal
201–210 of 413 posts
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#202Is this another case of "encryption works"?!
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#203This reads as extremely bizarre. I mean, reading the fifth amendment makes it pretty clear - no one should be compelled to witness against oneself. However, it looks like the current executive and judicial are thinking "well, those Founders were just idiots for putting such an amendment in, clearly it'd be much easier to prosecute people if we could compel them to witness against themselves, so why don't we just igno…
The supreme court is unelected, and are the supreme authority in this nation, above president and congress. the solution is simple - make the supreme court stand up to elections. America has had atrocious decisions from the supreme court. In Dred Scott, they said black people have no rights because they are black. In Roe v Wade, the abortion laws of 47 states were struck down by 5 oligarchs. No matter what you believ…
I agree that the sheer power and reach of SCOTUS today, and increased partisanship in practice (even though everyone pretends it's a non-partisan body), does necessitate some reform. But electing judges makes no sense - you might as well then just give the fullness of power to Congress, a la UK's parliamentary sovereignty.
What I think we should do is revisit what exactly SCOTUS does, and why. Right now they basically have the final say in any question of constitutionality, and the outcomes are either "it's constitutional" or "it's unconstitutional". I think that's wrong - the third possible outcome should be "Constitution is ambiguous on this". Currently this gets folded into one of the other options, depending on the majority of the court, but I think it's a poor model - if Constitution really is ambiguous, I don't want a simple majority of a few unelected people, many of whom are quite partisan, to make that decision.
Instead, I think this option (ambiguity) should be explicit. The way it would work is something like this - if the court decision is unanimous (or maybe with at most one dissenter) one way or the other, then it's assumed that the Constitution is really unambiguous on the subject, and that's the ruling - same as now.
But if you get a bigger split, then the ruling is automatically "ambiguous". At that point all the disagreeing parties on the court should have to sit down and write a short opinion on what changes to the Constitution they would require to make the other side's opinion unambiguously correct (if there are more than two sides - which can be the case if different judges rule the same way for different and unrelated reasons - then such opinions should be written for all parties other than the one in question).
Then, those opinions are automatically submitted as proposed constitutional amendments to the states for ratification, per usual procedure, except that each state can only ratify one at a time, and there's a reasonable time limit. If one of the amendments wins, then (since all judges have already stated under oath that this is what is required to remove any ambiguity) the ruling is in favor of the corresponding opinion.
If none of the amendments get the requisite majority of state ratifications, then court decides based on simple majority, just like today - but the resulting decision is not considered binding precedent, and only applies to that one case. If the same ambiguity arises in future cases, the process has to be repeated.
Ideally, this should be combined with a lower bar for constitutional amendments - 3/4 of states is really quite ridiculous, given the sheer number of them, and population differences. Something like 2/3 would be more sensible. Although ideally it should incorporate direct popular vote in a referendum as well, in a series of cascading vetoes to check each other - e.g. 2/3 of popular vote is enough to amend, but a simple majority of states can veto that, but 3/4 of popular vote can override the veto.
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#204Earlier quoted context omitted.
I'm not sure I understand something, either their argument about hashes, or how whole disk encryption works. I assumed that whole disk encryption meant that the disk, unencrypted, has high entropy, so the whole thing equally looks like snow. Doesn't FileVault encrypt the whole disk? So, where's this hash?
The defendant provided the password to his iphone (that contained highly-unsavory media of his nieces), which contained an unlock code for his laptop (filevault backup decrypt key). He connected the external drives to this laptop, and when he'd transfer media from his laptop to the drives, logging would occur with the file checksums. The hash/checksum is on the laptop with the filepath to the identified external driv…
If the hashes are known to match, there is really no need for the original pictures, the evidence is already there?
This makes it sound more like it's a fishing expedition for evidence to use in other investigations, or to find evidence for a more severe punishment, both of which one can morally agree or disagree with, but is it how justice should work? I honestly don't know, but I think probably not.
It's a detestable crime, which is exactly why we must not allow the law to be bent out of shape because of that, as the results will be used in other cases where our moral compass maybe wouldn't sway our judgement as much.
The only justice we can enact, flawed at rational reasoning as we are, is a dispassionate justice. One where we as much as possible defer to the few rational facilities we have. Weak, but nonetheless, logical and rational thinking, is what we must base our arguments upon, as we are so easily swayed by our instinct to protect our children at any cost, often with little regard to what consequence it might have in a distant future.
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#205Earlier quoted context omitted.
Wow, that's a lot against this guy, but hypothetically couldn't compelling him to decrypt his drives based on a file hash set a dangerous precedent where police can just plant file hashes somewhere to get access to anyone's drives? Sort of the high tech version of the drug dogs that would signal on cue.
They could also plant an unencrypted drive and skip the whole getting the password step.
Then they would need access to the images and not just knowledge of the hashes.
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#206Earlier quoted context omitted.
it's not similar at all. No one can prove that an encrypted drive is an encrypted drive and not a random number. whereas a safe is plainly a safe.
An encrypted drive will typically contain metadata identifying it as such, so no.
There is something, I believe called shadow volumes, which are completely metadata less encrypted containers living in a sea of random numbers. While you could claim that the existence of a program able to acess such a volume would be equivalent to metadata, no actual metadata needs to exist, and the random sea could contain one or ten volumes, which without a password you could never know, only guess or assume.
It is could even be possible, even likely, to create encryption schemes where several different encrypted volumes could share the exact same data blocks using something similar to homomorphic encryption. Which raises and obvious question: If the unlocked drive did not contain the data sought, can we hold someone in contempt after they did what we asked from them simply because we didn't find what we were looking for? Because we truly can't know if there is several encrypted volume in the same space without assumptions about information entropy and inaccessible configuration data.
Thankfully homomorphic encryption is not really practically viable today, so that particularly nasty can of worms is not imminent to solve, but we might be well served to let out decisions be informed by it, as it breaks most assumptions of what can be known, and what can't.
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#207What would happen if he lobotomized(carefully and mildly) himself, and legitimately could not remember his encryption keys/pw nor the reason he performed lobotomy?
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#208Earlier quoted context omitted.
Your interpretation of the 5th amendment is quite different than it has been historically interpreted by the courts. For example, in a trial, the prosecutor might subpoena some documents and you cannot refuse to turn over those documents, unless doing so would trigger a 5th amendment assertion. Turning over the documents implicitly testifies to at least two important pieces of information: that the documents exist an…
So here's my concern: guy's now been in jail without charge for 18 months. The prosecutors say his guilt is a foregone conclusion, but apparently it's not foregone enough that they're willing to go ahead and prosecute without the contents of his hard drive. They're gonna hold off until they get what they need. We're starting to get to the edge of the point where this guy might legitimately forget his password. I thin…
Perhaps the FBI have unlocked it, but them having the password doesn't prove that the accused had it. My guess is they wouldn't be pushing on with the case if they didn't know for sure that access would 'demonstrate' criminality. Similarly I imagine the accused knows that if they admit access they're going to spend a lot longer incarcerated. An impasse for our times
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#209Earlier quoted context omitted.
Thanks for the lucid explanation. What befuddles my non-lawyer mind is that why such evidence is needed in the first place. If it's established firmly that someone has piles of illegal files, then for the sake of their incrimination, why do the files need to be produced at all? If on the other hand, the files are being requisitioned for purposes unrelated to the the defendant's current outstanding culpability, then w…
If you refuse to hand over subpoenaed evidence you can be held in contempt of court which usually results in some sort of fine, but could potentially result in jail time. Note that this all occurs before your conviction, so time spent in jail for contempt does not count towards your eventual sentence.
Yes, but why are the files needed if it is know which files the drive contains based on hashes, as thousands of hashes matching known images should be plenty to convict on ?
Maybe the hashes can only tell that some drive contains the images, and the prosecutor believes it is this particular drive, and tries to avoid having to deal with that defense ?
If there is evidence that the particular drive contains those images, why bother with the drive at all ? This is the part that doesn't make sense to me.
Re: Man jailed indefinitely for refusing to decrypt hard drives loses appeal
#210what if there was a password to decrypt the drive into rick astley on a loop?